The human face of Blakely

I could not have been more wrong when I said there are not many Blakely news stories this morning. In fact, today’s Wall Street Journal has an article by Laurie Cohen and Gary Fields which may be the the most important Blakely article in some time because it tells the human stories behind the operation of the federal sentencing system and its “relevant conduct” rules.

The article is entitled “Reasonable Doubts: How Judges Punish Defendants For Offenses Unproved in Court,” and has the subtitle “Stories of Five Convicts Show That Charges in Dispute Can Multiply Prison Time.” The lead of the story captures the essence of the human tales: “Laurence Braun learned the hard way that being acquitted of a crime doesn’t always stop you from being punished for it.”

In addition to telling compelling stories about the use of acquitted and uncharged conduct to increase federal sentences — including the case of Jimmy Bijou, who had a federal judge exclude a jury from considering tainted drug evidence but thereafter at sentencing used the exact same evidence to double his sentencing range — the article is also extremely important for being the first to report on an issues I have be asking about for some time, namely how many federal cases have Blakely factors (background here). According to this WSJ article:

More than 44% of all cases in 2002, the last fiscal year for which data are available, had enhancements that may now be thrown into question by the Blakely ruling, according to a U.S. Sentencing Commission internal memo.